Defenders of the Bush Administration who argue against the criminal prosecution of former government officials for their illegal activity—torture, violation of FISA, etc.—uniformly raise a two part “good faith” excuse: 1) those who ordered and engaged in these illegal activities relied in “good faith” on Department of Justice legal opinions that authorized the activities; and 2) the legal opinions were “good faith” interpretations of the applicable law by Office of Legal Counsel lawyers (Yoo, Bybee, Delahunty).

The first part of this “good faith” excuse raises large questions: Can one rely in “good faith” on a memo which purports to authorize obviously illegal activity? Was it “good faith” for officials if their primary reason for seeking a legal opinion was to secure a defense against later criminal prosecution? Is “good faith” reliance a valid defense?

This post sets aside those issues to focus on the second part of the “good faith” excuse, which at first blush appears even murkier. The memos authorizing these illegal activities bear all the trappings of ordinary legal argument. How does one prove that these “legal opinions” were constructed in bad faith? The faulty legal analysis could, after all, have merely been the innocent mistakes of lawyers working on complex legal issues under stressful circumstances (as their defenders suggest).

But the recent release by the OLC of several of the relevant memos removes any doubt: these memos were elaborate exercises in manipulative legal argument. This cannot be explained away as post 9/11 haste and stress. The positions asserted in the memos were reiterated, elaborated, and expanded long thereafter.

OLC lawyers were faced with a big hurdle: the applicable law was directly contrary to what the Administration wanted to do. (That’s the thing about law—it can get in the way.) Rather than concede that the actions were illegal and could not be done, however, the lawyers constructed a covering legal analysis which arrived at the desired ends.

The soundness of their legal argument did not matter. What mattered was that OLC has the power to issue legal opinions that are authoritative for immediate purposes (within the executive branch) and the mere issuance of the opinion supplied the first part of the “good faith” excuse described above (providing a defense to those who directly engaged in the illegal conduct). (As an analogy, think of a tax lawyer knowingly preparing a letter that approves of the legality of an illegal tax shelter, thereby supplying the client with a reliance defense against subsequent IRS enforcement actions.)

I will indicate shortly why their “good faith” excuse has collapsed. But first it is essential to understand the extraordinary claims these OLC lawyers made. Their core argument, repeated time and again in these memos, is that, as head of the executive branch and Commander in Chief of the military, the president has the authority to do whatever he deems necessary, domestically and abroad, to conduct the “war” against terror. Their favorite phrase is that the president has “plenary power” (that is, absolute, unqualified) over these matters. If there was any doubt about this unfettered power (not in their minds), the Congressional resolution authorizing the president “to use all necessary and appropriate force” to combat terrorism (AUMF) supplemented and confirmed his plenary authority.

How far reaching is the president’s power? The president can authorize torture, approve of searches and seizures without warrants, order the domestic use of the military, abrogate treaties on his own authority, and he may “dispose of the liberty” of prisoners as he pleases, to offer a few examples, all without interference from courts and congress. The memos specifically assert that the First Amendment and the Fourth Amendment of the Constitution must give way when the president deems it necessary in defense of the nation. Civil liberties count for something, but ultimately they lose out (every time) when weighed against national security

Pause and let that sink in. It’s all there in the memos. Read them and be chilled.This is America—land of the free, bastion of the rule of law. Yet lawyers in the OLC (Yoo, Bybee, and Delahunty) claimed that the president is above the law in the various respects identified above—and these were the official positions of the Department of Justice until the belated repudiation by outgoing OLC Deputy Steven Bradbury in his January 15, 2009, memo (although he claims that the memos were not relied upon internally much earlier).

No wonder Bradbury thought it necessary to reiterate in his repudiation memo a proposition that has long been taken for granted in the United States (until the Bush Administration): “The President, like all officers of the Government, is not above the law.” Remarkably, the earlier OLC memos pointedly claimed the opposite in multiple respects.

So why has the “good faith” excuse for these legal memos evaporated? Exhibit A is Bradbury’s repudiation. Remember that Bradbury is a Bush appointee who substantially shares the conservative views of his predecessors in OLC. Bradbury undoubtedly does not want his predecessors to be prosecuted. He has every reason to soft-pedal or explain away their “mistakes.” But in the end he issues a resounding indictment of their work.

The abject emptiness of their legal arguments is reflected in Bradbury’s unequivocal language, retracting point after point: “the assertions excerpted above are not the position of the OLC;” “the sweeping assertions in the opinions…are not sustainable;” “the prior opinion…is incorrect;” “We disagree…;” “This Office has substantial doubts…;” “we have substantial doubts…:” “The survey of early history [in the memo]…does not support the opinion’s assertion…;” the argument “is problematic and questionable…;” “the reasoning supporting these assertions is unconvincing;” “We found the two opinions’ treatment of this history to be unconvincing, their analysis…to be doubtful.”

As Bradbury makes clear, the legal analysis in these memos, time and again, was just plain bad legal argument. Some of the arguments veer into the bizarre. Consider this concluding passage from a Yoo-Delahunty memo arguing that the president can order warrantless searches (case citations deleted):

The courts have observed that even the use of deadly force is reasonable under the Fourth Amendment if used in self-defense or to protect others. Here, for Fourth Amendment purposes, the right to self-defense is not that of an individual, but that of the nation and of its citizens. If the government’s heightened interest in self defense justifies the use of deadly force, then it would certainly also justify warrantless searches.

Huh? The reasoning goes like this:

Individuals can use deadly force to defend against a deadly attack;

The government can use deadly force to defend the nation against an attack;

Therefore: the government can engage in warrantless searches.

As Bradbury asserted (politely), dismissing this analysis: “We believe that this reasoning inappropriately conflates the Fourth Amendment analysis for government searches with that for use of deadly force.” It’s stupefying. (There are a few other whoppers in the memos—like the claim that if the president has authorized actions contrary to the terms of a particular treaty this amounts to a “suspension of the treaty” rather than a violation.)

The OLC memos are replete with selective historical arguments, selective readings of constitutional and legislative history, selective citation to judicial precedents, selective readings of statutes, and selective leaps of logic. Advocacy of this sort is standard stuff for lawyers, but OLC lawyers are in a different position precisely because their opinions have authoritative consequences. There is a difference between what the law is and what the Administration wants the law to be, and the role of OLC lawyers is to advise on what the law is and on how the Administration may achieve its objectives consistent with the law (or to say that the actions cannot be done).

The positions taken in these memos were not “mistakes” in legal analysis by unskilled lawyers working under pressure. They were elaborately crafted by capable lawyers. The legal analysis nonetheless fails time and again because the positions they were determined to justify could not be legally justified. That is precisely why this was not “good faith” legal argument. To the contrary, these legal memos were carefully constructed unsound legal arguments. Short of advising that the actions could not be done consistent with the law, which was the only proper course, any legal argument they constructed would have been unsound because the actions were not legally permissible.

The law wouldn’t bend as far as they wanted. But they wrote the legal memos anyway, placing the president above the law. As a result, the president and those acting on his behalf were above the law—for a time.

Your contention appears to be that the law "obviously" prohibited certain acts by the President against a wartime enemy and the President and his OLC attorneys engaged in a conspiracy whereby OLC would produce false legal memorandum to provide a legal defense against future criminal charges.

Your only evidence appears to be that the current OLC disagrees with the prior OLC on points set forth in a January memo and you consider Yoo's self defense argument to be ridiculous when applied to the 4th Amendment. This is a pretty thin reed on which to make an allegation of bad faith in furtherance of a conspiracy.

To start, the January OLC memo does not contend that any executive action was unlawful. Rather, it simply notes changes in OLC positions concerning a handful of areas. Indeed, the changes offered by OLC often provide legal support for contested executive acts.

Second, neither a disagreement between attorneys over a novel area of law or even bad lawyering constitutes bad faith on the part of the erring attorney.

Yoo has always been a strong executive power advocate before and after his OLC service. You and I may disagree with his points of view, but that does not mean that he is acting in bad faith and is engaged in some sort of a conspiracy.

The Bradbury memo is itself hardly without its problems. For example, Bradbury claims that the balance of powers between the Executive and Congress over captured enemy combatants has been "overtaken...by legislation passed by Congress and supported by the President." The idea that Congress can expand its Article I powers through legislation or the President can waive his Article II powers by supporting legislation is without legal precedent.

Likewise, after offering extensive precedent that the Captures Clause grants Congress the power to set rules for POWs as well as captured property, Bradbury simply assumes without precedent that Congress may also set rules for captures through its power to regulate the good order and discipline of the uniformed services, a far more questionable proposition.

Finally, Bradbury appears to have created limits out of whole cloth on the President's power to withdraw from treaties based upon prior practice as opposed to actual legal limits in the Constitution. In Goldwater v. Carter, 444 U.S. 996 (1979), a plurality held that Carter's withdrawal from the Panama Canal Treaty was a political issue between the elected branches with Powell dodged the issue altogether on ripeness grounds because Congress had not opposed the withdrawal, which assumes that the withdrawal was a political issue. Thus, there are no current constitutional limits on a President's power to withdraw from treaties, only the opinion of an OLC attorney.

I do not assume that Bradbury any more than Yoo is acting in bad faith simply because he is advancing questionable arguments in unsettled areas of the law, even if they do not make sense to me.

"Advocacy of this sort is standard stuff for lawyers, but OLC lawyers are in a different position precisely because their opinions have authoritative consequences. There is a difference between what the law is and what the Administration wants the law to be, and the role of OLC lawyers is to advise on what the law is and on how the Administration may achieve its objectives consistent with the law (or to say that the actions cannot be done)."

I agree with you in theory, but do we have any actual examples of OLC telling an Administration that it couldn't do something that it really wanted to do? My experience with OLC during the Clinton years was to the contrary.

Nice post, Brian. If the original OLC arguments had been made in Federal Court in the context of a civil suit, do you think they would violate Rule 11 of FRCP? Not that I think that ought to be the standard that OLC should be held to; I think it should be held to a higher one. I am just curious what you think.

Second, neither a disagreement between attorneys over a novel area of law or even bad lawyering constitutes bad faith on the part of the erring attorney.

And if that's what we were talking about, that would be true. But you cannot simply construe bad faith lawyering as mere "disagreement" when you approve of the conclusions reached by bad faith reasoning. The Constitution does, and does not, permit certain things; the fact that you can make any argument, however bad or unreasonable, to justify your desired outcome is not "good faith" reasoning. When every day we have judges who may or may not dismiss legal arguments made in court as being made bad faith, somehow when it comes to the Constitution we have no standards at all; everything is mere "disagreement."

Your are right that the 4th amendment analysis alone does not prove the point that these memos are fundamentally unsound (although it does show that their arguments were at times ridiculous). I offered it merely as an example.

The overarching conclusion can be established only after reading all the memos. Then it becomes clear: they tried their hardest to stretch every possible way to make it work, but their legal arguments failed. This involves about two hundred pages of legal analysis, which I do not pretend to respond to in a short post.

I cite to Bradbury's retractions not just because they are convincing on the merits (and one must read the underlying memos to assess his positions), but for the additional point that Bradbury supports their general policy goals yet even he could not accept the analysis. More to the point, he abjectly dismissed their analysis (as did Goldsmith, Comey, and other Bush Administration sympathizers).

When even your ideological comrades think your legal analysis is indefensible, you (or Yoo) are in deep trouble.

Physio Prof,

Let me say directly that many of these legal arguments are beyond the pale (as Bradbury makes clear)--frivolous if you prefer.

In contrast to what Bart suggests, much of what they argued for is not debatable (otherwise Bradbury would not have retracted them). Considering the capacious room for debate that law often allows, that's pretty bad.

Garth- I am not sure what you mean by “sweeping.” I would think that the claim of authority to wage war without congressional authorization on a country (Serbia) that was not even the remotest threat to US security was pretty sweeping.

Leave that aside for the moment, though. I am just asking whether there are examples, in the Clinton administration or any other, of OLC telling the President he couldn’t do something that he really wanted to do.

At some point Yoo will realize that he has been left hanging out to dry. He got his 15 minutes and it hasn't turned out that well for him. That happens often when an attorney tells his client what the latter wants to hear, stretching as much as possible, with the view like little Lisa's bro that everything is debatable and defensible: I'm a lawyer, I can take any position I want. Yoo has been judged by the administration he worked for, that he accommodated. He will have to live with it, defend his position ad nauseum. At the end, he was baked by the Bush Administration, which can say it relied on the advice of counsel. "It's just that now we think our counsel was wrong. Yoo bad!"

When even your ideological comrades think your legal analysis is indefensible, you (or Yoo) are in deep trouble.

Or perhaps your ideological comrades are simply changing tacks to offer arguments that they hope are more acceptable to and will survive the new regime to accomplish the same end goals.

FWIW, I am not a big Yoo fan. Yoo is the strong executive counterpart to Marty's strong legislature advocacy. Yoo appears to assume the President can do damn well whatever he pleases and Marty seems to think that Congress can do as it pleases - the actual text of the Constitution be damned.

The fact is that the Constitution is pretty clear. Article I grants Congress specific enumerated powers and nothing more. Article II grants the President broad, but general powers. Where the two branches' powers coincide, Congress's specific powers trump the President's general powers. However, where a power is granted only to one branch or another, that branch enjoys plenary authority in that area.

Yoo's argument that the President enjoys plenary power over setting rules for captures when Article I expressly grants that power to Congress is just as much bunk as the contention that Congress may direct foreign intelligence when Article II makes the President commander in chief.

I do not attribute these errors to bad faith, but rather deep seated ideological blinders.

Just a couple of corrections re: Bart DePalma's reference to *Goldwater v. Carter*. 1) The case did not involve the Panama Canal Treaty. It involved a Mutual Defense Treaty between the Republic of China (i.e. Taiwan) and the U.S. 2) Then-Justice Rehnquist's conclusion was that the question of whether the President has the power to unilaterally terminate was a *nonjusticiable* "political question." Nonjusticiable means exactly what it says, that the courts don't decide. It does not mean that "there are no current constitutional limits on a President's power to withdraw from treaties." Rather, it means only that the *judiciary* has not answered - and ought not answer - the question of whether there are constitutional limits on the President's power. There is plenty of debate about whether there are constitutional limits on the President in this area, and I'm not arguing that either Yoo or Bradbury is correct. The key point, however, is that it is incorrect to say that Bradbury is "creat[ing] limits out of whole cloth." [FWIW: there is also a difference between "suspending" a treaty (the legal question in the memos) and "terminating" a treaty (the issue in *Goldwater*), an issue that both memos discuss at some length. So, even if *Goldwater* had been a substantive decision on the constitutional question re: termination of a treaty, it wouldn't necessarily dictate the result on the question of suspension of a treaty.]

thanks for what i would term your "no lawyerly lying accepted" commentary.

it is distressing to me how often the legal profession, on which we all rely, engages in self-serving obfuscation on issues regarding lawyers' misconduct.

for yoo to say "i was just serving my client, the prez" is, to a non lawyer, extremely troubling and simply exacerbates the deep distrust between "ordinary" citizens, of which i am one, and the legal profession.

the profession of journalism customarily responds in a similar protective way regarding its members who have clearly NOT served the public interest.

imo, this is no way to run a quasi-democratic society.

and for any profession, it is, in the LONG run, extremely dangerous (one never knows how far away a revolutionary maybe).

"it is distressing to me how often the legal profession, on which we all rely, engages in self-serving obfuscation on issues regarding lawyers' misconduct."

And it is distressing to me as an attorney for 54+ years. Attorneys are "oficers of the court." Attorneys also serve as gatekeepers. This contributes to making the law a profession and not just a bunch of hired guns.

Consider what's happened in tax law, securities law and real estate law that has contributed to the financial and economic crises we are in. Many attorneys were involved, perhaps more interested in the adversarial aspects and big fees rather than also serving as gatekeepers, as consciences, etc. The attorney cannot always fall back on: "I was just a lawyer, advising my client." The client cannot always fall back on: "I was relying upon the advice of my attorney." Any attorney who has practiced even a few years soon becomes aware of the pressures of clients for an opinion or advice to justify marginal conduct. The financial pressures can be great: "I pay you to make deals, not to kill them. If you won't do it, there are plenty of attorneys out there who will." It is difficult for an attorney to give up a paying client, especially one who pays well. And Yoo was there at the edge, ready to jump in and accommodate his client. Now he'll just have to live with having been abandoned by his bosses, his Moby Dick. Hopefully, to paraphrase songwriter Harry Warren, "There will never be another Yoo." He could hide behind the Bush only so long.

But there may be a lesson in this for others lower on the political chain. Perhaps they will realize that when the "fit hits the sham" those at the top of the chain look for a link below to blame and separate for self-protection. It may be too late for Yoo to demonstrate that he was only following orders.

Yoo's argument that the President enjoys plenary power over setting rules for captures when Article I expressly grants that power to Congress is just as much bunk as the contention that Congress may direct foreign intelligence when Article II makes the President commander in chief.

Article II makes the President Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.

Since many of the agencies that conduct foreign intelligence are at least nominally comprised of civilians, I see no Constitutional prerogative that gives the President a greater right to direct foreign intelligence than the Congress.

well little surprise in this new memos for me at least* other than the fact they very strongly reinforce the urgent need to situate the OLC on the entirely different grounds. It that will take a constitutional amendment so be it. That office is far too important to be just hired hands in the service of people like Cheney or Bush.

---

*For example the assertion that ".. the president can ... approve of searches and seizures without warrants" has been announced first long time ago by Gonzales at his confirmation hearing. He went as far as to claim that "that is the long settled law of the land, no question about it" but nobody paid any attention at the time.

Which as could be expected had massive implications in the field, the FBI, the military intelligence, local police departments all over the country, everybody in terror and "law enforcement" agencies started proceeding accordingly, warrantless searches, seizures, surveillance galore on the scale not seen even in the old East Germany. With far better, far more intrusive technology.

I once attended a public meeting in Oregon where the local retiring SAC bemoaned plans to create a new federal law enforcement organization because that new agency was supposed to be run by military intelligence, ex CIA and police intelligence people (basically former police red squads) with the former FBI people relegated to the back seat (payback for their failure to prevent 9/11) which he considered extremely dangerous because as he put it "while our past can be hardly considered exemplary we are and have ever been far more civilized than those people, far more!, so proceed at your risk".

Which brings me to this, the future "truth commission" should expand its mandate to aggressively investigate involvement of ex CIA and military intelligence people in domestic law enforcement and if any is found affect full prosecution and long term sentences for anybody involved. This is because no democracy can tolerate involvement of such people in spying on its own people. We have enough problems as is with the FBI and local police.

Specter's argument against the truth commission - just walk through the front door, ask where the file cabinets are and see what's there - holds little water, governments generally are poorly suited to investigate their own police and military agencies, they depend too much on them for their ability to govern effectively. In other words oversight of security apparatus (which mostly mean reining them in) can effectively be done only by Congress.

That judiciary can be here of no help has been long pretty evident to any objective observer of that branch.

you may want to check out dean's new post on findlaw. he addresses this issue and notes that;

From personal experience, I know that during the Nixon years – with a president not known to be shy about wishing to exercise his powers to the fullest – OLC was a consistent restraining influence, regarding both foreign and domestic legal matters.

One example will suffice: Nixon wanted a clear signal from OLC that he could – and ideally should – criminally prosecute the New York Times for publishing classified information associated with the Pentagon Papers. Then-OLC head William Rehnquist (no shrinking violent either regarding presidential powers), in essence, advised against it.

Article II makes the President Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.

Since many of the agencies that conduct foreign intelligence are at least nominally comprised of civilians, I see no Constitutional prerogative that gives the President a greater right to direct foreign intelligence than the Congress.

When civilians and civilian agencies provide military intelligence to the military, the President commands them as CiC. To the extent that they are acting in a purely civilian capacity, the President directs them as the sole executive. Article I does not grant Congress either command or executive power in general, not the power to direct or limit the President's direction of foreign intelligence gathering in particular.

Bart DePalma said... Ooops, I stand corrected.

So, should we accept the untruths in your post as innocent mistakes (still pretty shoddy work for a lawyer purporting to correct a distinguished law professor on a legal blog)?

Or, should we use the standard you have used against Obama and offer this as proof that you are a serial liar?

You are welcome to apply the same standards to me that I apply to others.

Lying is knowingly communicating a false statement of fact.

I made a mistake confusing Goldwater's opposition to Carter's withdrawal from the Panama Canal treaty with that from the Mutual Defense Treaty with the Republic of China. There was no intent to mislead, but rather a failure to double check a fact on the run. When reminded of my error, I immediately corrected the error. However, the point that the courts treat presidential withdrawals from treaties as a political issue still stands.

I am not going to get into Mr. Obama's series of lies on this thread. You are welcome to come to my blog, review my allegations and defend Mr. Obama.

Where the two branches' powers coincide, Congress's specific powers trump the President's general powers.

That's not what you were saying a year ago, Bart. One might even call the about-face "Bradbury-esque."

It is what I have been saying for years here and elsewhere.

Indeed, I made the argument that Article I's Captures Clause granted Congress the power to enact rules for the treatment of POWs here long before I was gratified to see OLC adopt the identical argument on their January memo.

You are probably confusing the posts of others falsely attributing Yoo's positions to me.

I've been amused by the beating Yoo et alia are getting over at Volokh - not your lefty hang-out by any means. A number of posters there have raised a question that I think faces all of us trying to figure out what was going on in Yoo's mind: was it bad faith, or is he incredibly unintelligent?

Yoo's memos disclose a level of illogic - and logic-bending argumentation - that really leaves the rest of us with only these choices. I think Brian's post gets at this conundrum nicely. We really are well past the line of reasonable disputation, here.

And, by the way, Bart, being ideologically blindered is not incompatible with exercising bad faith. Indeed, the former is frequently the motivation for the latter. Bad faith is not limited to fully self-aware thinking. Self-deception is a very nice tool for bad faith.

" I've been amused by the beating Yoo et alia are getting over at Volokh - not your lefty hang-out by any means."

The rationale for this may be to break the chain, to put the blame all on Yoo in order to protect those at the top. But Yoo was not a rogue; the whole barrel was rotten. If Yoo were to blow the whistle, the expected response would be "Why didn't you speak up earlier, after all these years and all your OpEds supporting OLC and the Bush presidency?" This is the trap that many low in the chain face, thinking that loyalty for loyal service and accommodation will protect them.

I made a mistake confusing Goldwater's opposition to Carter's withdrawal from the Panama Canal treaty with that from the Mutual Defense Treaty with the Republic of China. There was no intent to mislead, but rather a failure to double check a fact on the run. When reminded of my error, I immediately corrected the error.

Well, actually, no, you didn’t. You acknowledged the errors, but your original post with mistakes is still there for all the world to see.

I am not a lawyer, and maybe you guys do things differently, but if I were going to tell a well-known professor in my field that he was wrong, I'd take the trouble to make sure all of my facts in my argument were correct before making the challenge.

Shaq has it right (as he often does) that John Yoo was merely one in a crowd of like-minded folks. He is being hung out to dry for the reasons Shaq says. That does not make him any less responsible for his actions, but it does say a lot about the character of his comrades.

But Yoo was in a particularly crucial position because they needed legal enablers, a service Yoo eagerly supplied.

As we learned in the Nixon midnight massacre (Cox-Richardson), the integrity of lawyers is sometimes the only and last restraint against a president (and cohorts) who lacks respect for the law.

You haven't done so on your mangling of the Brown II decision, and even more importantly in your false statement of the holding in the Pentagon Papers case, where you at least acknowledged once that you were wrong, but then subsequently repeated the same false claim.

I’m looking here and through The Torture Papers to find a memo (or legal opinion) saying that establishing a detention facility at Guatanamo Bay would not violate the terms of the lease with Cuba (both the 1934 Treaty of Relations and the 1903 Lease of Lands).

But I cannot find anything specific.

Can anyone explain to me (a non-lawyer) why the DoD would not have to consider the terms of the lease to build a detention facility, let alone to interrogate combatants captured by non-Naval forces?

Very interesting post, redwood. I thought I was fairly conversant with the issues related to Gitmo, but I've never seen this before.

You're right that the plain language of the treaties appears to foreclose our current use. That's an additional point in favor of the SCOTUS rulings that we exercise sovereignty over it. I don't know enough international law to offer more.

It is good to hear that there is such a thing as law, and that there are laws, and that some of them say that some things are illegal, and that those laws continue to say that even if some people prefer to believe otherwise, and that remains the case even if those people happen to have power. And that likewise facts exist, even those inconvenient to war criminals.

I'm sure the people in power heartedly believe what they're saying.

But E pur si muove. Sorry Yoo and your ilk. Sorry you don't like it. Sorry it doesn't rock your world. Sorry the facts bother you so. Oh yes, and the law. News flash: the facts and the law won't be changing to fit your illusions. E pur si muove. Deal with it.

. . . what was going on in Yoo's mind: was it bad faith, or is he incredibly unintelligent? Yoo's memos disclose a level of illogic - and logic-bending argumentation - that really leaves the rest of us with only these choices.

Of course.

And if you'd like the law to be regarded as having any standards at all, the accountability here won't go away. Which is it? And what are the consequences?

"The lease simply states that we will use the territory as a naval base. What precisely prevents a naval base from being used as a POW camp?"

Little Lisa's bro minored in economics to lecture us on how the banking and financial crises were being mishandled by Pres. Obama, while supporting the Bush Administration for its actions over the prior 8 years. Besides his legal skills (self-declared) as an advocate on DUI, it appears he is an expert on landlord and tenant law. Little Lisa's bro expressed the simplicity of the law of economics: supply and demand. Now he expresses the simplicity of lease law in the international arena. Is there no end to little Lisa's bro's simplicity? How can anyone challenge that use as a naval base includes use as a POW camp? Is this what Devil's Island was? And were the persons restrained at Gitmo POWs as understood in the context of International Law or in some new category invented by the Bush Administration with the help of Yoo know who? As understood at the time of the execution of the lease (is there a link to the lease?), would a POW camp be incidental to a naval base, perhaps to confine pirates caught on the high seas? Or was Gitmo more of a fueling station, handy for purposes of Monroe Doctrine monitoring?

But isn't the real issue here the relationship of the lessor (Cuba) and the lessee (U.S.)? Which had the leverage in case Cuba challenged the POW camp as a breach of the use clause of the lease? What legal steps would Cuba have to take to challenge such use under the terms of the lease? And assuming Cuba got a judgment from a court to support its position, how could Cuba enforce the judgment?

It is amazing how simple things are for little Lisa's bro, so black and white, when it suits his "idiotology." Is he Simple Simon or the Pieman?

The fact that in practical terms Cuba could not do anything about a detention facility is the only explanation I can imagine.

On 9 January 2002, Yoo responds to Haynes, who evidently asked for the OLC’s view on the treatment of detainees in the light of international treaties, which sounds open-ended to me. Yoo, though, is silent on both the Lease of Lands and the Treaty of Relations.

And since a few weeks prior, (28 December 2001) Yoo laughably denies that the detainees at Guantanamo have a right to Habeas in America because, although the Lease of Lands explicitly states that America has jurisdiction, he claims Eisentrager (339 U.S. 763) wasn’t thinking sovereignty implies jurisdiction. (boy, reading that made me wonder what lawyer’s for other nations were thinking, particularly hostile nations.)

But if the detainees do not have Habeas rights in America because the US is not the sovereign power over Guantanamo, why wouldn’t the detainees have Habeas rights within the nation that is soveriegn, i.e. Cuba?

Am I correct in thinking that ordinarily the lawyers (OLC) would have had to say whether or not Cuba hears Habeas appeal? (After all, at that stage, the DoD would want its whole ass covered, not just in USDC, right?)

To be sure, you should be able to view both the Lease of Lands and the Treaty of Relations by clicking on the titles listed lere. (please let me know if you cannot.):

If you are through rambling, there are no laws of war limiting the detention of POWs at naval bases to prisoners taken by the navy.

POW camps can be run by any service and have traditionally held POWs from more than one service. For example, the Luftwaffe ended up running German POW camps holding allied Army, Airforce and probably a few Navy POWs. The US military generally delegates POW detention to the Army as is the case at Gitmo and Bagram.

Before you start, there are also no laws of war stating that an Army unit may not be stationed at a naval base like the Army MP and intelligence personnel running Gitmo. Hell, my father completed his WWII service as a navy sailor stationed at an army base in Texas commanded by a Marine general. These administrative niceties are all dictated by the needs of the military.

The reason neither Yoo or anyone else who is conversant in military law ever addressed this issue is because there is no issue.

Redwood, the link works. I downloaded, printed and read with care the two documents listed.

In 54+ years of legal practice, I have reviewed a wide variety of leases, including NYC ofice leases that run close to 100 pages single spaced. The lease here is quite simple, only 3 pages long. There are a number of references to "coaling and naval stations" in the lease. The first paragraph of Article II closes with the following:

" ... and generally to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose."

Included in Article I is the following statement:

"This lease shall be subject to all the conditions named in Article II of this agreement."

So where does a POW camp fit in, keeping in mind that this lease was "Entered into force February 23, 1903." The 1934 Treaty, in Article III provides:

"The supplementary agreement in regard to naval or coaling stations signed between the two Governments on July 12, 1903, also shall continue in effect in the same form and on the same conditions with respect to the naval station at Guantanamo."

Neither the lease nor the treaty includes a provision detailing the rights of the parties in the event of a default. I bow to experts on international law in this regard. And I would bow to the legal expertise of little Lisa's bro on how the lease and treaty would be construed in landlocked Colorado. But the use clause seems very limiting. While a naval brig might be appropriate, that is a far cry from the incarcerations occurring on Gitmo. You (no, not Yoo) be the judge.

The lease here is quite simple, only 3 pages long. There are a number of references to "coaling and naval stations" in the lease. The first paragraph of Article II closes with the following:

" ... and generally to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose."

Included in Article I is the following statement:

"This lease shall be subject to all the conditions named in Article II of this agreement."

So where does a POW camp fit in...?

The question is whether the lease prohibits the US as lessee from conducting the activity of detaining POWs on the leased premises.

Article I addresses the permissible activities on the lease premises and simply states that the US may use Gitmo "for the purposes of coaling or naval stations." Once again, one of the purposes of a naval station can certainly be to detain prisoners of war.

Article II is largely irrelevant to the question at hand. Generally, a lessee may not modify the physical structure of the leased premises except as permitted in the provisions of the lease. Article II is just such a lease provision, allowing the US as lessee to physically modify Gitmo to make it a naval station. This provision says nothing as to what purposes Gitmo can be used.

To the extent that Article II addresses the construction of facilities to detain POWs, Article II permits the US to "do any and all things necessary to fit the premises for use as coaling or naval stations." Again, one of the purposes of a naval station can certainly be to detain prisoners of war.

"Article II is largely irrelevant to the question at hand. Generally, a lessee may not modify the physical structure of the leased premises except as permitted in the provisions of the lease. Article II is just such a lease provision, allowing the US as lessee to physically modify Gitmo to make it a naval station. This provision says nothing as to what purposes Gitmo can be used."

The plain language on limitations on the lessee's use is clearly spelled out as a condition in Article II: " ... use as coaling or naval stations only, and for no other purpose." So Article II is clearly relevant on use.

If a lease does not impose limitations on use, a lessee, subject to waste, nuisance, etc, is free to modify the leased premises. So the statement in the second sentence of the quoted paragraph is incorrect. (The lessee might be required to deliver up the premises upon the termination of the lease in the condition they were in at the commencement of the lease term, reasonable wear and tear excepted, under certain circumstances.) The last sentence of the quoted portion is just plain erroneous.

Little Lisa's bro's closed mind is all that supports his closing statement. Perhaps Santa will leave a few lumps from the Gitmo coaling station in little Lisa's bro's "Backpack of Lies" as an early XMAS gift so he might get a new lease on life and enjoy the next 7+ years.

Through selective editing, you are taking the last clause of Article II completely out of context. In its entirety, Article II makes two provisions:

The grant of the foregoing Article shall include the right to use and occupy the waters adjacent to said areas of land and water...

The first clause provides access to the leased premises and is irrelevant for our question.

...and to improve and deepen the entrances thereto and the anchorages therein,

...and generally to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose.

The second and third clauses expressly deal with physical modification of the premises.

The second clause expressly authorizes improvements to the harbor entrance and anchorages.

The third clause is a catchall provision that authorizes any and all other "things" (i.e actions) "necessary to fit the premises for use" as a naval station.

The the object of the phrase "necessary to fit the premises" is the premises itself and can only refer to physical modifications necessary to make the leased premises fit to serve as a naval station. This is the operative language which you neglected to quote.

The concluding phrase "and for no other purpose" simply reinforces that the purpose of the physical modifications authorized in the third catchall clause is only to make the premises fit to serve as a naval station.

Even of the drafters of the lease meant Article II to address the permitted activities of the lessee, Article II would simply echo Article I's statement that the US may use Gitmo "for the purposes of coaling or naval stations."

For the last time, one of the purposes of a military naval station can certainly be to detain military prisoners of war.

Professor Tamanaha asks: "How does one prove that these “legal opinions” were constructed in bad faith?"

One way would be to examine the drafts, and the correspondence (between the lawyers and their "clients" in the WH) in connection with those drafts.

For example, if it can be shown through examination of these records (emails attaching marked-up drafts, for instance) that there was collusion between the lawyers and the WH concerning the language, reasoning, and conclusions of these opinions, would this not -- by itself -- be evidence of bad faith?

And if so, this bad faith would appear to extend to both the drafting of the opinions and the reliance on them.

I believe that this very circumstance was implied by a Newsweek article a couple of weeks ago (too lazy to find the link) as forming the primary basis of an as-yet-unreleased OPR report. This type of evidence would, of course, be devastating -- which may be the chief reason it has not yet been released.

"The lease simply states that we will use the territory as a naval base. What precisely prevents a naval base from being used as a POW camp?"

It's amazing how simple this is with all the explanations subsequently made. Little Lisa's bro's knowledge of lease law is obviously quite limited. Sort of like his assertions, black and white, of provisions in the Constitution.

Presumably coaling is no longer used for naval vessels. So I suppose, according to little Lisa's bro's simplicity, Gitmo could be used for nuclear fueling of naval vessels. (Keep in mind the dates of the lease and the treaty.)

And were those persons incarcerated at Gitmo POWs in the parlance of International Law? Or some other YOO-HOO category?

Maybe little Lisa's bro is relying upon Jack Nicholson for his Gitmo authority.

And I suppose, according to little Lisa's bro, building humongous prisons on Gitmo, shore to shore, high rise, limited only by geography, would be okay as part of a naval station. Let's see, how many thousands might Gitmo hold?

he also keeps using ‘war’ as though international law makes no distinction between a nation’s actions subsequent to a declaration of war and those she takes without one.

but from what I gather, international law (or custom) is a none starter. I’m not going to embarrass myself by trying to explain why, except to say that I think it has something to do with (1) Cuba signed the lease and (2) the US didn’t ratify the Vienna Convention on the Law of Treaties.

but the it’s-a-none-issue claim doesn’t pass the common sense test. after all, there was at one stage (if not now) McDonald’s and Starbucks operations on the base. So why bother with the POW fairy tale?

Nonetheless, even if one interprets the lease to imply that an Army can build a permanent detention facility on a Naval base on foreign soil, regardless of what the host country says, I should think the lawyers for the DoD would want the OLC to say so in writing, like, “don’t worry about, building the encampment will not be inconsistent with the lease.”

I did download the Zayas article but it runs some 65 pages and I don't think that I can dig into it until later this week. The Table of Contents suggests that the matter covered is not quite as simple as a Simple Simon might make of it.

But sticking to the lease and the treaty that has been discussed at this post, I confess, again, that I am far from expert on International Law. But I suppose a good start would be to try to understand the meaning of "coaling and naval stations" in the timeframe of the 1903 lease and in the timeframe of its perpetual extension with the 1934 treaty. Perhaps there is a lengthy history of the U.S.'s use of Gitmo from the git-go up to Jan. 20, 2001, regarding detaining (which sounds temporary in nature, doesn't it?) POWs and other prisoners to compare with GWG's use of Gitmo since. Joe raises the matter of the Haitians in the 1990s that might be of interest. The Haitians may have directly involved naval operations in the Caribbean. Were the POWs (or other classification of detainees) brought to Gitmo by naval vessels? Or were they enplaned?

The point is, like many things in life (e.g., the U.S. Constitution), things are not as simple as they seem, at least to some. (Consider that 71 briefs were filed for the Heller Second Amendment case, to some a simple provision, decided 5-4.) I don't know Zayas. But apparently he/she has given much thought to the subject matter. I'm just a country lawyer who has happened to reviewed a fair amount of leases (primarily representing commercial tenants) in a number of the states as well as in Europe. Lease law is more complex tha the law applicable to sales of real estate. Add to that the complexities of International Law, and what you don't have is simple.

It's possible that the issue of the lease and treaty has been examined by OLC or other government attorneys over the years, especially following the 1934 treaty which in effect made the lease perpetual, which in itself seems most unusual. (From the Table of Contents, it seems that Zayas might address this.)

So perhaps it is time for little Lisa's bro to give a "here, here" cheer to FDR and his New Deal which worked out the 1934 treaty, leading the way to GWB's Gitmo perversions that little Lisa's bro continues to relish.

Redwood, I'm getting too old for this. I'll be 79 this summer. I hope some younger eyes take a look at Zayas's article and let's us know a little more of what started as a simple "coaling and naval stations" use restriction in a lease that's over a 100 years old, signed by that old trustbuster TR, and made perpetual over 70 years ago by his cousin FDR. Speaking of sweet real estate deals, these Roosevelts were real sharp!

The standing and as of yet unanswered question: "The lease simply states that we will use the territory as a naval base. What precisely prevents a naval base from being used as a POW camp?"

1) Shag: Given your hopefully unintentional misrepresentation of Article II of the Gitmo lease that I had to correct, one would think that you would want to avoid pissing contests about our relative expertise in lease interpretation.

2) The Red Cross offers a pretty good rendition of how international law defines a prisoner of war:

A prisoner of war is a combatant, generally a member of the armed forces of a party to an international armed conflict or an individual enjoying equivalent legal status, who has fallen into the hands of an adverse party.

Individuals enjoying equivalent status include war correspondents, supply contractors, merchant marine and civil aircraft crews, and civilians who spontaneously take up arms to resist invading forces (Art. 4, Third Geneva Convention of 1949). In case of doubt, any person who takes part in hostilities is presumed to be a prisoner of war (Art. 45.1, Additional Protocol I of 1977).

The Gitmo detainees comfortably fall under this generic definition of a POW, even if they do not qualify for GCIII POW privileges.

3) A station is simply a center of operations and thus a naval station is a center of naval operations.

4) de Zayas' claims without precedent or reasoning that a naval station cannot detain POWs. The Status of Guantanamo Bay and the Status of the Detainees (2003). I can see a colorable argument that the detention of civilians for civilian immigration violations might not fit the military mission of a navy and thus not conform with the purpose of of a naval station, but even this argument on behalf of Haitian immigrants failed before the courts. Consequently, I see no basis for arguing that detention of military prisoners of war is not a legitimate purpose for a navy or a naval station. If there was a legitimate argument or precedent, I assume de Zayas would have offered it.

Seriously, Mr. DePalma, I'm still not convinced that the question whether permanently detaining non-Naval prisoners at Guantanamo is inconsistent with the terms of the lease (or the Treaty of Relations with Cuba) is a non-issue, quite apart from the sick and twisted things that went on there.

but, again, even if it was, or even if the question was ask and answered by the OLC before (Lederman on the Hatians, perhaps?), I should think that as the lawyer for the DoD Haynes would have expected to hear as much in Yoo's 9 January 2002 memo, for as Yoo writes Haynes wanted to know, "...our Office's [OLC] views concerning the effect of international treaties andfederal laws on the treatment of individuals detained by the U.S. Armed Forces during theconflict in Afghanistan."

Shaq wrote, "But I suppose a good start would be to try to understand the meaning of "coaling and naval stations" in the timeframe of the 1903 lease and in the timeframe of its perpetual extension with the 1934 treaty."

I did get to review Part II of Zayas' article, The Status of Guatonamo Bay In Public International Law, pages 288 through 308, which includes a discussion of the lease and some history, with applications of international law. I direct readers' attention to page 308 under the subheading "(e) Termination by Virtue of Material Breach." This spells out Zayas' position on the lease: "According to the terms of articles 1 and 2 of the 1903 Lease Agreement, the use of the Guantanamo Bay territory was limited to coaling and naval purposes only, 'and for no other purpose.'" He continues: "It would follow that the repeated use of the territory as an internment camp (for 36,000 Haitian refugees in the years 1991 to 1994, and 21,000 Cuban refugees in the 1990s) or as a detention and interrogation centre and prisoner of war camp (where trials and even executions are envisaged) is wholly incompatible with the object and purpose of the treaty. This arguably entails a material breach of the agreement justifying unilateral termination by Cuba in accordance with article 60 of the Vienna Convention."

Zayas also provides other bases for the termination of the lease.

As usual, little Lisa'a bro corrects nothing. Perhaps he thinks Gitmo might be appropriate for Sunkist oranges as he contemplates his navel. Again, his ignorance of basic lease law is apparent from his statement in an earlier comment:

"Generally, a lessee may not modify the physical structure of the leased premises except as permitted in the provisions of the lease."

But that's okay. Once again, I am not an expert to any extent on international law. And based upon little Lisa's rants and claptrap over the years at Balkinization, surely his sole expertise is blogging under the influence. For him, it's all so simple, black and white, no gray, including between his ears.

Anderson, thank Redwood. He opened new vistas for me by raising the topic and providing links and offering to pursue certain aspects. He stands tall.

My take on the lease may not provide standing, however, to detainees. Cuba does have standing and has expressed objections to the U.S. position on the lease/treaty. I am not expertise on international law to assert positivily that the detainees lack standing on the lease/treaty issue, but if the lease is voidable under international law (Zayas' position), it sems it would be up to Cuba to take steps to void the lease. (But how would Cuba evict the U.S. from Gitmo?) I do not know if U.S. courts addressing Gitmo detainee issues directly addressed the lease/treaty issue as it relates to a violation of the use limitations of the lease.

As to the courts addressing the "use" issue, the Supreme Court in the Haitian (including in the dissent) and enemy detainee cases cited the lease, including it's telling name, but only dealt with jurisdiction. As did the oral arguments.

"With respect, the lease restricts the ability of the United States, to use that property for only Naval or coaling purposes, it specifically says it may not be used for any other purpose."

But, as to jurisdiction, certain questions were raised as to the terms of the lease, how the property could not just be subleased, and so forth.

FWIW, the 9th Circuit in Gherebi v. Bush addressed the terms of the lease -- it held that the fact the U.S. clearly went beyond the limited use in its terms underlines it sovereignty over the territory:

"Whatever question may have existed about our sovereignty previously, our insistence on our right to use the territory for any and all purposes we desire, and our refusal to recognize the specific limitation on our rights provided in the Lease and continuing Treaty, removes any doubt that our sovereignty over Guantanamo is complete."

And:

"18 To the extent that the Lease purported to limit the types of activities the U.S. may conduct, that particular aspect of the agreement lost any and all practical and legal significance when the U.S. ceased to recognize Cuba diplomatically in 1961, and began thereafter to act in direct contravention of the terms of the agreement, up to and including the present use of Guantanamo as a prisoner of war camp forsuspected Taliban fighters."

The dissent challenges the ruling as to the lease issue. The majority in the 9th Cir. ruling even cited a proposed use involving people from the Balkans. Interesting avenue & I second those who thank redwood for bringing the issue up.

So perhaps international law recognizes adverse possession/use as the equivalent of sovereignty? Or that principles of estoppel establish sovereignty? Or the doctrine of Cy Pres establishes sovereignty? Or is it just "might makes right" establishing sovereignty? Perhaps it's time to reread Howard Zinn.

As usual, little Lisa'a bro corrects nothing. Perhaps he thinks Gitmo might be appropriate for Sunkist oranges as he contemplates his navel. Again, his ignorance of basic lease law is apparent from his statement in an earlier comment:

"Generally, a lessee may not modify the physical structure of the leased premises except as permitted in the provisions of the lease."

You already conceded the point by acknowledging that an action in waste is available to the lessor. This is the reason that the Gitmo lease included Article II's provision expressly permitting the lessee US to physically modify the premises.

The reason I used the term "generally" is because there is an exception to the waste cause of action as there is to almost every law. The lessee could offer a defense that it was engaged in ameliorating waste that improved and increased the value of the land, thus defeating a claim for damages.

In any case, this side comment of mine has nothing to do with your misrepresentation of Article II of the Gitmo lease which I corrected.

Little Lisa's bro once again has corrected nothing. And he has further stepped in it on the law of waste, at least as it relates to lease law. If A leases Blackacre to B and the lease says nothing about what B can do with the property, then B can do as he wishes, subject to waste, nuisance, illegality, etc. And under certain circumstances, the lessee may not even be obliged to restore the condition of the premises as at the commencement of the lease term when yielding up the premises, unless the lease requires B to do so. Perhaps little Lisa's bro is focusing upon "wasted" in DUI parlance.

But what little Lisa's bro continues to do is ignore the phrase in Article II of the Gitmo lease, " ... and for no other purpose" referring back to the use as "coaling or naval stations only ...." This attached belt, suspenders and jockstrap to the use provision in Article I making the lease " ... subject to all the conditions named in Article II of this agreement."

Little Lisa's bro rants on:

"You already conceded the point by acknowledging that an action in waste is available to the lessor. This is the reason that the Gitmo lease included Article II's provision expressly permitting the lessee US to physically modify the premises."

I conceded nothing. The permission granted by the lessor was to accommodate the limited use for a coaling and naval stations but nothing else. For without such permission, how could Gitmo be operated as "coaling or naval stations"? If the lease had no limits on use, then perhaps the U.S. could have established gambling facilities, hotels, etc, on Gitmo, to replicate the resort life in old Havana, as well as prisons.

As I have said with earlier comments, I do not have expertise in international law. But it continues to be other than simple, except to a simple mind. Who was it that said "A simple mind is a such a waste"?

No one is claiming that the US could do anything is wanted at Gitmo. That is yet another red herring.

As I posted above, Article I addresses the permissible activities on the lease premises and states that the US may use Gitmo "for the purposes of coaling or naval stations."

I then posed the question that no one including yourself has been able to answer: "The lease simply states that we will use the territory as a naval base. What precisely prevents a naval base from being used as a POW camp?"

Taking and holding prisoners of war is a universally recognized military function under international law as summarized in the Red Cross definition I posted above.

While the US Army has been traditionally tasked with detaining POWs, the US Navy performed this task for captured Japanese soldiers in the parts of the Pacific Theater of Operations where the Army was not present until they could be transported to the mainland US at Camp McCoy.

Our designation of the Army to perform the detention task was an administrative preference, not a requirement of the laws of war.

Unless you folks can do a better job than Mr. de Zayas in actually offering a single of scintilla of precedent that POWs many not be legally held at a naval station, reliance upon the Gitmo lease as a means to free enemy POWs is frivolous and without any merit.

"No one is claiming that the US could do anything is wanted at Gitmo. That is yet another red herring.

"As I posted above, Article I addresses the permissible activities on the lease premises and states that the US may use Gitmo 'for the purposes of coaling or naval stations.'"

That red herring seems to have made it upstream into Colorado, where it will probably simply rot and not spawn.

Amd just where in either Article I or Article II of the lease is the word "may" used regarding use? To ignore the phrase in Article II " ... and for no other purpose" is sheer legal ignorance, especially for a texualist. If the U.S. did not use the premiaes for "coaling and naval stations" then perhaps the U.S. would be abandoning the lease. Look at the preamble recitations quoting Article VII of recited documents, including the phrase " ... the lands necessary for coaling or naval stations ...." Perhaps the thin air in Colorado makes a simple mind even simpler.

A guided tour of Yoo's fecal matter is enlightening although of course nauseating. I suspect we all have to hold our noses though, and wade through the muck and mire until we're clear on just how broad and deep it went. We owe that much to the Constitution, and to the people whose blood and vomit covered the floors of our torture rooms, on the orders of (cough) The President of The United States of America, all certified as legal by (gag) His Legal Advisors.

Now it's hardly surprising that Yoo's unrepentant -- so many war criminals are, after all. "I did nothing wrong! It's all politics! You have no right to judge me!" Saddam, Milosevic, Yoo -- the screaming they emit about "unfair" never ends.

Yoo's current "wartime" yap amounts to no more than defending torture.

"Whenever I hear anyone defending slavery, I feel a powerful impulse to see it tried on him personally". Abraham Lincoln.

Notice that little Lisa's bro does not employ "alleged" in this statement of his with respect to "unlawful combatants":

"The Bush Administration refused to use the term POW because folks like you would abuse the term to demand unearned GC privileges for these unlawful combatants."

Presumably he would insist upon "alleged" with respect to describing his DUI clientele in media reports. So does the "coaling and naval station" use limitation permit not only "POW" camps but "unlawful combatants" camps? And how does one "earn" "GC privileges"? At least in the Old West there would be an announcement of a fair trial before the hanging, form over substance. With Gitmo and its "alleged" "unlawful combatants" there has been neither form nor substance.

The Bush Administration refused to use the term POW because folks like you would abuse the term to demand unearned GC privileges for these unlawful combatants.

Folks like me? You mean people who believe in the law and think it should apply to everyone? Whatever you mean by “folks like you”, I embrace it with pride.

The Bush administration assured us that the people being held at Guantanamo Bay were the “worst of the worst”. Yet, of the 775 detainees who were brought there, around 420 have been released without charge. Another 50 or so are cleared for release, but their home countries won’t take them. Of the remaining 220 or so, U.S. officials expect to bring 60-80 to trial and release the rest.

Three have been convicted of a crime. One for providing material support to terrorist, one for being Osama bin Laden’s driver, and one for making a propaganda video.

Perhaps the reason Bush didn’t want to call them POWs was because most of them had nothing to do with the “war”, period.

So, I'm very interested in the lease issue. Has Cuba said anything about this at all? I suppose they have been having absorbing troubles of their own, recently, but I would have thought they would make some noise at the get-go of Gitmo. (Sorry.)

How could "coaling and naval base" be interpreted to permit a long-term prison camp? Some years ago, I was a member of a group that obtained a lease to use an open area for "educational events and activities." Could we have interpreted the lease to mean that we could imprison students?

Actually, even my hypothetical makes more sense than the Gitmo situation. At least I was imagining imprisoning students - which could, plausibly, be an educational activity.

Defenders of the Bush Administration who argue against the criminal prosecution of former government officials for their illegal activity—torture, violation of FISA, etc.—uniformly raise a two part “good faith” excuse...

Brian, you are too generous.

Many defenders of the Bush administration ignore the issue of whether the opinions were issued or used in good faith. Instead, they pretend that anyone who believes a Bush official should be prosecuted must necessarily believe that anyone who wrote or relied on an incorrect opinion should be prosecuted (which would obviously be absurd). In other words, they rely on a false dichotomy that either every incorrect opinion ought to be prosecutable or none should.

For an example, see Jeffrey Rosen writing in The New Republic: The issue hinges on whether giving or relying on erroneous legal advice should be a criminal offense. Note how Rosen's rhetoric implicitly rules out the correct view that giving or relying on erroneous legal advice ought to sometimes but not always be a criminal offense, namely when it is done in bad faith.

1) If you bothered to read the Red Cross definition of POWs, it includes support personnel and propagandists.

2) POWs are not generally tried for crimes, thus, the fact that most of the Gitmo detainees have not been tried is hardly unusual.

3) Also, it in not historically unusual for POWs to be paroled back to their home countries upon assurances that they will not return to the war. Unfortunately, our parole decisions during this war have about a 10% failure rate, including al Qaeda commanders in Yemen and Iraq and a top Taliban commander running their IED terror campaign in Afghanistan. Worst or the worst indeed.

Notice that little Lisa's bro does not employ "alleged" in this statement of his with respect to "unlawful combatants"

Alleged applies to suspected enemy prior to their GC status hearings. The term alleged does not apply to anyone found to be an enemy combatant in a status hearing or for the 39 who managed to fool the status hearing board and were released to return to terrorism, including current al Qaeda and Taliban commanders in Iraq, Yemen and Afghanistan.

So does the "coaling and naval station" use limitation permit not only "POW" camps but "unlawful combatants" camps?

There is no difference under the definition of POWs given by the Red Cross above. One can be both and unlawful combatant who does not follow the laws of war and a POW.

And how does one "earn" "GC privileges"?

Try actually reading GCIII. In short, stop committing war crimes, fighting disguised a civilians and extend GC privileges to our captured soldiers rather than torturing them to death.

At least in the Old West there would be an announcement of a fair trial before the hanging, form over substance. With Gitmo and its "alleged" "unlawful combatants" there has been neither form nor substance.

You are revealing your utter ignorance again. Try reading the transcripts of the status hearings. They are largely indistinguishable from a probable cause hearing in a civilian criminal court and provide far more due process than the simple battlefield status hearing required by the GCs. The US military performed all that was required by the GCs on the battlefield when they made the initial determination to transport the capture to Gitmo.

Alas, little Lisa's bro continues to reach down into his cornucopia, his Backpack of Lies, cherrypicking, trying to hoist himself by his own petard, referencing the Red Cross, ignoring the Red Cross' many criticisms of the treatment of detainees. Perhaps he may resort to cherrypicking from other human rights organizations to find some morsel to defend the indefensible. The problem with cherrypicking is [drum roll] the pits, where we find little Lisa's bro trying to climb out of the ever deepening hole he is digging. That hole is so deep, little Lisa's bro can't hear the fat lady singing. Maybe by the time this thread is over, little Lisa's bro may end up in China - and perhaps be charged as an unlawful combatant?

And is there no meaning to " ... and for no other purpose ... " in the Gitmo lease?

It's time to drop a line down into that hole. OOPS! Both ends? My bad.

makes only passing reference to Gitmo and its closure by Pres. Obama, maybe, just maybe little Lisa's bro can access it with his laptop (assuming it's in with his Backpack of Lies) from the pits previously decribed to get the full picture of what his hero, George W. Bush, has bestowed upon this nation.

Since little Lisa's bro will be long in the pits, he might see if his laptop can connect with Howard Zinn's "A People's History of the United States" to put all this in perspective. Can he dig it?

Likewise, the NYT notes today that: "Top Diplomat to Be Named Special Envoy on Guantánamo"

mls is interested in our discussion, but not enough to actually deal with the arguments on the law. Concern that we are breaking the law (e.g., lease agreements) is not as important when doing in areas near people we don't like.

mls again forgets (or ignores) this is not about "them" but us.

As to the SA women, mls has suggested in the past that the likes of Danish cartoons and the like concerns people over there more than things like that or their fellow people being tortured or even killed overseas. Repeatedly, this includes people later deemed innocent.

OTOH, as recent columns on Jews in Iran and the like over at the NYT suggests, such a slanted view of things isn't quite how the masses overseas think. [see Glenn Greenwald for links]

Human rights and the law not only concerns of lefty types who genuflect in front of former attorney generals who are the son of former Supreme Court justices, like Ramsey Clark.

I'm being a bit snarky here, but it does point to a different mind-set.

Likewise, the NYT notes today that: "Top Diplomat to Be Named Special Envoy on Guantánamo"

Lets see if I get this right. Obama is going to beg the EU to resettle former terrorists in their countries because he is unwilling to resettle them in the United States.

Obama has every reason to fear that the GOP would use immigration of al Qaeda and Taliban into the US as a club to beat the hell out of the Dems during the 2010 elections. Does he honestly think that the EU politicians do not fear the same reaction from their non-muslim voters?

Of course, maybe Obama can convince the EU that the detainees he is attempting to pawn of on them are really the "moderate" Taliban and al Qaeda with which he wants to negotiate the terms of our surrender in Afghanistan - in response to which the Taliban leadership ROTFLTAO.

As compared to the GWB Administration's professional incompetence from Jan. 20, 2001 to Jan. 20, 2009? Little Lisa's bro seems to be using the "One Flew Over the Cuckoo's Nest" defense: So if GWB's actions created the situation in Gitmo, after 6+ years of detention without a trial these detainees became so insane and untrustworthy and incapable to go back into any society. So keep 'em locked up at Gitmo to protect the world's society and perhaps themselves. Under the circumstances, it makes no difference that they were innocent to begin with."

Has it ever occurred to you that the enemy might just lie to you for propaganda purposes and to gain release to return to terrorism?

Has it ever occurred to you that a detainee captured in the company of Taliban carrying a rifle with watches commonly used as timers for bombs might just be Taliban and not just an innocent farmer impressed into service by the Taliban as he claims?

Has it ever occurred to you that a detainee claiming that all he wants is "to go back home and join my family and work in my land and help my family," might be lying to return to terrorism?

Unfortunately, this did not occur to those "fascists" on the Bush era Gitmo combatant status boards whose only intent in your opinion is to drive innocent Afghan farmers and goat herders "insane and unstrustworthy" for sadistic laughs and giggles.

And you wonder why Obama is has to assign a diplomat specifically to beg the EU to take terrorists on our assurance that they are no longer dangerous and will not murder EU citizens. Perhaps you can volunteer to resettle one of these cleared terrorists in your home. Its perfectly safe. Obama promises.

There goes that clock again, can you hear little Lisa's bro: "Cuckoo, Cuckoo, Cuckoo." There are ticking bombs all over the place. Look under your bed for communists and especially terrorists. The sky is falling! The sky is falling! That Backpack of Lies is getting so heavy little Lisa's bro will segue into Quasimoto.

It is interesting that you are conflating the war with Islamic fascists with the war with Soviet communists as Obama's identification of heretofore unknown Taliban moderates echoes Jimmy Carter's complaint about an "inordinate fear of communism."

We see lots of evil, we hear lots of evil. But little Lisa's bro neglects to add "do no evil." We do not want to do evil, and we don't. And it hurts when it is the U.S. government, our government, that is the source of the evil, or responds to evil with greater evil.

Just consider one of the findings of the 9/11 Commission regarding the potential dangers to our ports, to our country, because of the lack of inspections of containers. These are direct dangers, yet the neocons and other yahoos look at a few individuals many miles away as the greater threat. Even one-time supporters of GWB's Administration have finally accepted many of his actions as failures. Are we better off today than we were 8 years ago? Yahoos like little Lisa's bro are on a crusade. Might makes right, playing King of the Hill. LBJ gaves us guns and butter; GWB gave us guns, butter, tax cuts and debt. Two failed Texans, when it came to war.

No doubt little Lisa's bro is aware of the Stockholm syndrome. But he seems to be suffering from the Gitmo syndrome with his "One Flew Over the Cuckoo's Nest" defense he offers GWB and his malAdministration. If little Lisa's bro came into my confessional, I would give him infinite hail Mary's and have him read Howard Zinn's "The People's History of the United States" or Mark Twain's "Letters from the Earth" to face reality. In the child's game of "King of the Hill" there is no permanent King.

Has it ever occurred to you that the enemy might just lie to you for propaganda purposes and to gain release to return to terrorism?

Of course. That is to be expected.

Has it ever occurred to you that leaders of your own government might lie to you, telling you that Saddam had weapons of mass destruction, or that a motley collection of prisoners are the “worst of the worst” for propaganda purposes and to gain politically?

"In a filing today with the federal District Court for the District of Columbia, the Department of Justice submitted a new standard for the government's authority to hold detainees at the Guantanamo Bay Detention Facility. The definition does not rely on the President's authority as Commander-in-Chief independent of Congress's specific authorization. It draws on the international laws of war to inform the statutory authority conferred by Congress. It provides that individuals who supported al Qaeda or the Taliban are detainable only if the support was substantial. And it does not employ the phrase 'enemy combatant.'"

As to the new announcement our recent Danny Glover ("I'm getting too old for this") addressed, I too am unclear as to what changing adjectives means.

But, standards tend to be a matter of degree. So, when "insignificant or insubstantial support" is not enough, it is significant. It is something for courts and lawyers to hold their hats on. Of course, like everything else, it relies on the judgment of the individual actors involved.

More importantly, the administration is relying on AUMF and the laws of war, not "on the President's authority as Commander-in-Chief independent of Congress's specific authorization."

Need more clarification? Think the AUMF should be tossed aside? Ball in Congress' court -- seize the day not to -- as in the past -- to strip rights like habeas, but to better clarify them.

TPM reports on a withdrawal of the term "Enemy Combatant" with respect to Gitmo...Is pitting dates substantial?

Your final snark is apt.

Dropping the usage of of the term "enemy combatant" - which suggests an enemy who has some connection to combat operations against the United States - for the far broader definition of any Tom, Dick or Osama who "substantially supports" al Qeada or the Taliban arguably expands the power to detain beyond that exercised by Mr. Bush.

For example, under this definition, the President should be able to detain as POWs the members of the Al Haramain Islamic Foundation in Oregon for financing al Qaeda even if they had no personal involvement in or any knowledge of particular al Qaeda combat operations.

"For example, under this definition, the President should be able to detain as POWs the members of the Al Haramain Islamic Foundation in Oregon for financing al Qaeda even if they had no personal involvement in or any knowledge of particular al Qaeda combat operations."

And what about those with their Backpacks of Lies in Colorado, especially the bearded ones? Little Lisa's bro should be careful, else there might be a Gitmo new lease on life in his future, if his broad construction is given to this new edict.

I wonder what kind of w(h)ine I might serve little Lisa's bro with the pitted dates of my snark.